Back to the Internet Taxation Future

Several days ago, I received an email containing the text of an article by Eleanor Roberts, Main St. Needs Tax Loophole Closed. It was suggested that I take a look at the information on a web site that supports the same points that were made in the article, and makes even more errors in analysis, such as quoting politicians who conflate the sales tax and the use tax.

According to Ms Roberts, Massachusetts, admittedly in dire need of tax revenue, is collecting less tax than it otherwise could reach because “online-only businesses do not have to collect sales tax.” Several questions came to mind. First, is this an assertion with respect to Massachusetts or is it an assertion generally? Second, is this a situation that exists because Massachusetts law does not impose a sales tax
obligation on online businesses, or because Massachusetts revenue officials aren’t enforcing existing law?

Under Massachusetts Code, ch. 64H, section 2, “An excise is hereby imposed upon sales at retail in the commonwealth, by any vendor, of tangible personal property or of services performed in the commonwealth at the rate of 6.25 per cent of the gross receipts of the vendor from all such sales of such property or services, except as otherwise provided in this chapter.” And under Massachusetts Code, ch. 64I, section 2, “…. an excise is hereby imposed upon the storage, use or other consumption in the commonwealth of tangible personal property or services purchased from any vendor or manufactured, fabricated or assembled from materials acquired either within or outside the commonwealth for storage, use or other consumption within the commonwealth at the rate of 6.25 per cent of the sales price of the property or services.” In other words, Massachusetts has in place the typical retail sales taxation arrangement. A sales tax is imposed on purchases made within Massachusetts, including online purchases made from Massachusetts vendors. A use tax is imposed on purchases made by Massachusetts residents from vendors who are not within the jurisdiction of Massachusetts, whether those purchases are made in person, through mail-order, or over the internet.

So the assertion that “online-only businesses do not have to collect sales tax” is not true. A company organized in Massachusetts, with offices in Cambridge and a warehouse in Boston, that sells goods to someone living in Worcester is obligated to collect and remit sales tax whether the Worcester resident walks into the Cambridge office, orders over the telephone, sends an order through postal mail, or uses the internet to place the order. If the company decided to accept only email and web site orders, the outcome would not change. Though it would be an online-only business, it would still be required, under Massachusetts law, to collect sales taxes. The same obligation would be imposed on vendors located outside Massachusetts if they have sufficient nexus, in other words, contacts, with Massachusetts to justify Massachusetts jurisdiction. These sorts of contacts include sending sales representatives into Massachusetts, maintaining offices there, owning or renting space for the storage of goods in Massachusetts, and so on.

When a state does not have jurisdiction over a vendor, and thus cannot require the vendor to collect sales tax, the state imposes a use tax on the consumer who made the purchase. Massachusetts follows this pattern. The practical problem is that Massachusetts does not want to focus its resources, time, and attention on noncompliant consumers. Like other states, it would prefer to have the vendors do the collection work for them, but the problem is that Massachusetts has no jurisdiction to compel this outcome. So when turning to the second question, it appears that the concern is not that Massachusetts is not enforcing its sales tax, but that it is not enforcing its use tax.

I dealt with this issue almost three years ago in Taxing the Internet: Reprise, in which I commented on the proposed Streamlined Sales Tax Agreement. I explained that “lobbying for the proposal … has been intensifying, orchestrated and led by state governments that somehow seem incapable of enforcing their own use taxes on their citizens.” It appears that Ms Roberts’ article is yet another attempt to sell an arrangement that runs up against basic principles. Some advocates of the SSTA claim that states can impose their sales taxes on vendors who have no contact with the state, simply because a resident of the state contacts the vendor out-of-state and purchases a product that the resident causes to be brought into the state.

Ms Roberts claims that, ”In 1992 the Supreme Court mandated that Congress take appropriate action to force the collection of sales tax over the Internet.” Though she gives no citation so that one can determine which Supreme Court case she wants to highlight, she surely is referring to Quill Corp. v. North Dakota (91-0194), 504 U.S. 298 (1992). Not only did the Supreme Court, in Quill, reject North Dakota’s attempt to require an out-of-state vendor to collect North Dakota use taxes, it imposed no mandate of any sort on the Congress. The Court merely made several observations about the Congress. First, it noted that “while Congress has plenary power to regulate commerce among the States and thus may authorize state actions that burden interstate commerce, … it does not similarly have the power to authorize violations of the Due Process Clause.” Second, it noted that its decision was easier to make because “the underlying issue is not only one that Congress may be better qualified to resolve,… but also one that Congress has the ultimate power to resolve.” Third, it noted that Congress was free to disagree with the Court’s analysis. Fourth, it concluded that “Congress is now free to decide whether, when, and to what extent the States may burden interstate mail order concerns with a duty to collect use taxes.” Fourth, it noted that “Congress has the power to protect interstate commerce from intolerable or even undesirable burdens.” The Supreme Court did not issue a mandate, that is it did not command Congress to do anything. It simply pointed out that Congress has the power to regulate the collection of use taxes, but also that it cannot authorize states to impose requirements that violate the Due Process Clause.

Three years before I wrote Taxing the Internet: Reprise, I analyzed a variety of tax issues that arise when internet transactions are involved. It is useful to look again at some of what I shared in Taxing the Internet:

On the one side is the argument expressed in the title of Dick Armey's Philadelphia Inquirer commentary: "Cyberspace is the last frontie; don't let them tax the internet" . . . Armey advocates keeping the internet tax-free, though that is a misleading goal. The internet has not been tax-free, is not tax-free, and will not be tax-free. Armey argues chiefly against taxing Internet access, but he doesn't distinguish between that sort of imposition, and taxation of transactions conducted through the Internet. The principal argument that he and other "don't tax the internet" advocates raise is the wisdom of letting Internet technology grow and mature without the hindrance of taxation. If we were to abolish taxes on all who need to grow and mature, there wouldn't be much left to tax.

On the other side are the folks who advocate taxing all internet transactions. Chiefly advanced by some state legislators, who are seeking to increase state tax revenues, the argument is that any connection whatsoever between the transaction and the state entitles the state to subject the transaction to its tax system. The best example is that of on-line sales and the extent to which a state sales or use tax should apply. Suppose consumer A, living in New Jersey, uses the Internet to access the web site of a retailer located in Illinois, looks at products, orders a product, pays using a credit card, and receives the shipment in New Jersey. Does a sales tax apply? The answer is found in the tax treatment of a similar transaction, in which the person's neighbor looks at a print catalog, phones the retailer, and makes the purchase. New Jersey cannot require the retailer to pay a sales tax because the sale does not take place in New Jersey, and New Jersey cannot require the retailer to pay a use tax unless the retailer has a sufficient "nexus" (or set of contacts) with New Jersey to justify imposing the tax. Without getting into all the technical analysis, sending a catalog into New Jersey is not sufficient nexus. Why should the Internet transaction be treated any differently? What New Jersey can impose is a use tax, on the purchaser, but effective administration and enforcement of use taxes seems to escape state legislatures. The hole in tax revenue caused by inefficient use tax enforcement existed long before the Internet came into being, but the Internet brought attention, and the attention brought the state legislatures the temptation to make the retailers do their use tax administration and collection for them.

States are strange in this respect. Because Delaware has no sales tax, and Pennsylvania does, many Pennsylvanians drive to Delaware to purchase items on which they do not pay the Pennsylvania use tax. Delaware merchants use "no sales tax" plugs in their advertising. Unlike the Liquor Control Board, which sends undercover agents to the District of Columbia (where alcohol is much less expensive principally because of lower taxes) to look for vehicles with Pennsylvania license tags outside retail liquor establishments, and who then call ahead to officers "waiting at the border," the use tax division doesn't seem to care. Some states now include a "use tax" line on their income tax returns. How effective that will be remains to be seen.

My analysis rests on a premise that I shared at the beginning of that commentary, namely:

The overriding principle that should apply is this: when it comes to taxing transactions and activities conducted on or through the internet, or taxing access to the internet, those transactions, activities and access should be taxed no differently from the way in which transactions and activities conducted through means other than the internet are taxed. This principle, though, is ignored by those who take either extreme position with respect to taxation and the internet.

As I pointed out in Taxing the Internet: Reprise,

the last time I looked at the case law state 1 has no "independent and sovereign authority" to impose a sales tax on a transaction that takes place in state 2. Whether the state 1 resident travels to state 2, phones a merchant in state 2, or contacts the merchant in state 2 through the internet, state 1 is powerless to impose any tax until the state 1 resident returns to state 1 with the item. If state 1's legislature and tax bureaucracy cannot figure out how to do that, perhaps they can resign and make room for those who do.

I also pointed out something that needs again to be given attention:

As I re-read my three-year old Taxing the Internet, I see descriptions of the same arguments being advanced today by the "tax the Internet" crowd and by the "no taxes at all" group. The flaws in the rationales for taxing email continue to exist. I urge all those involved with, or interested in, this latest round of "tax the Internet" to read Taxing the Internet. Then it will be fairly easy to understand my proposal: "(1) tax access as is taxed telephone and cable access, (2) tax retail transactions as catalog sales are taxed, imposing use tax collection responsibilities on those with sufficient nexus to the taxing state, (3) eliminate and prohibit "Internet only" taxes, and (4) find another way to deal with spammers, casinos, and other social behavior that is considered unacceptable or inappropriate."

Now what are the odds that politicians will follow this sensible approach?

The odds of politicians doing the sensible thing remain low so long as arguments are advanced that rest on faulty analyses of Supreme Court opinions, faulty summaries of state statutory tax law, and unwillingness to insist that state revenue departments that seem to be unable to deal with use tax collection take lessons from those states that have done innovative things to bring their use tax collection procedures into the twenty-first century without shifting their responsibility to out-of-state vendors because those vendors are easy targets given their lack of voting rights in the state in question. Instead of arguing for the closing of a tax loophole that does not exist, the advocates of SSTA or other use-tax-collection-burden-shifting devices ought to lobby their state legislatures to compel their revenue departments to figure out how to do their job.

Repeals, Expirations, and Reinstatements: A Taxing But Critical Difference

Words are precision instruments, but too often, even in the hands of professionals such as lawyers and journalists, they get used as though they are blunt instruments. In the hands of politicians, lobbyists, and special interest groups, words get transformed into sound bites, twisted assertions, and outright lies. An unfortunate, but telling, example has moved into the spotlight on account of what can be found in the President’s proposed budget.

In his proposed fiscal 2011 budget, the President proposes to let certain provisions enacted in 2001 and set to expire in 2010 by terms of the 2001 legislation to expire as scheduled. Among those provisions are the tax rate reductions enacted in 2001 for taxable income in the 36% and 39.6% brackets. Other rate reductions enacted in 2001 and set to expire would be extended. The break point essentially is taxable income of $250,000, or $200,000 for unmarried taxpayers, expressed in 2009 dollars and set at some higher amount after adjustments for inflation. The proposal to let the tax cuts for taxpayers in the high income brackets has come under fire from the usual crowd. Another provision is the special low rates of zero percent and 15 percent for capital gains and certain dividend income, rates that expire in 2010, and that by terms of the 2001 legislation return to 20% for capital gains and ordinary income rates for dividends.

According to the General Explanations of the Administration’s Fiscal Year 2011 Revenue Proposals, at pages 127 and 128, what the president is proposing to do is to “reinstate” the 36% and 39.6% rates, to “reinstate” the 20% rates for capital gains, and to “reinstate” the ordinary income rates for dividends. The folks at Bloomberg, in Obama Budget Seeks $1.9 Trillion Tax Rise on Richest, Business, claim that the Administration seeks a “tax increase” though it does carefully explain that the budget “would reinstate” the 36% and 39.6% tax rates. ABC News, in Obama Budget Would Impose Host of Tax Increases, characterizes the Administration proposal as one of “not renewing tax cuts.” Interestingly, though the Wall Street Journal gets it right in an article headlined Tax Cuts to Expire for Top Earners, in a subsequent article, The President’s Priorities, the Journal provides a chart that describes the tax cut expiration as “Repeal Bush income tax rates” even though it also uses the word “Reinstate” to describe the expiration of the phaseout of the itemized deduction and personal exemption phaseouts, and it refers to “tax increases” in the text of the article.

Depending on how one characterizes the proposal, one ends up with very different perspectives on what is being proposed. References to tax hikes and tax increases suggests that if the President proposes that the Congress do nothing with tax rates and the Congress goes along, taxes would remain as they are. That is not the case. If the tax law is not amended, or even if it is and section 1 of the Code is left alone, the tax cuts enacted in 2001 will expire by their own terms. The President has proposed that the Congress extend the 2001 tax cuts, to the extent they apply to taxpayers with income under whatever the inflation-adjusted $200,000 and $250,000 amounts turn out to be. Rather than focus on this attempt to help the middle class, the wealthy elite and their spokespersons – a list far longer than the handful of articles mentioned above – are wailing about the expiration of a decade of unwise tax policy.

To describe the President's proposal as a "repeal" is downright erroneous. One cannot repeal that which does not exist. If nothing is done, the lower tax rates enjoyed by the wealthy will disappear by their own terms. They would not be, and cannot be, repealed. Yet using the word "repeal" is nothing more than a too-obvious attempt to pin the blame on the President for something for which he is not responsible. It's misleading. And it is shame-worthy.

To get this point across, imagine a family wins a one-week vacation. At the end of the week, when the parents tell the children it’s time to go home, they raise a fuss because they perceive their parents as “ending” their vacation. Yet the parents are not the ones who set the terms of the vacation so that it expires in one week. True, they could reach into their pockets and pay for additional vacation time, but when the children start acting as though they are entitled to a longer vacation, they are demonstrating the mindset that has infected the entitlement mentality of those who, rather than being grateful for tax cuts that almost caused another Depression and wisely laying low, jump and scream for more of what has harmed so many Americans. The audacity is appalling.

Or consider the child who asks for a temporary increase in her allowance. The parents agree, and tell the child that for the next four weeks, the child’s allowance will be increased by two dollars. When the allowance reverts to its usual amount, the child complains to the parents, “You reduced my allowance.” Even if taken as literally true, and it isn’t, the expiration of the increase is not the same as a decrease. If the parents let the opportunity to teach the child the difference pass by, the child very well will grow up to be someone who thinks that the expiration of temporary tax reductions constitutes an affirmative tax increase even though no one is doing anything but watching the temporary reduction expire. The language of entitlement can trace some of its origins to this sort of distortion in the use of words.

The advocates of low or no taxes on the wealthy have been stressing the impact of the budget proposal as a “tax increase.” To the extent that the wealthy will be paying higher taxes in 2011 than they paid in 2010 or the preceding years of the decade, there surely will be an “increase” in the taxes that they are paying. But the decrease in the taxes was a temporary measure, and restoration of the tax rates to what they were before they were foolishly reduced is very similar to the expiration of that one-week vacation, except that in the vacation example the family cannot stand accused of having wrested the free resort time through misrepresentation and breach of public trust. There is a story from long ago about a thief who was required to return the stolen goods to the victim, and who complained that the officials involved in the case were “stealing” from him. When warped logic comes to dominate the tax policy debate, the nation’s governance becomes skewed to the point of near failure.

It is obvious that the motivation for accusing the President of increasing taxes is a political one. More voters can be energized by sound bite accusations that someone has “raised taxes” when the truth is that the person did nothing more but stand by and watch tax breaks expire by their own terms. Until American voters acquire the ability to push aside the misleading political sound bites that pollute the electoral process, the nation faces nothing more than continued inefficiencies in governance. It comes down to how many realize that the parents did not end the prize vacation nor reduce the allowance and how many fall for the misleading assertions reflecting the perception of ungrateful and spoiled children.

Caveat Emptor, Law Students Seeking Outlines

The title of this post isn’t designed to demonstrate any sort of proficiency in Latin but to alert law students to the dangers of relying on outlines received from other students. The risks posed by using passed-down outlines have been threatening law students for almost as long as there have been law schools, but digital technology coupled with the internet has multiplied the risk by orders of magnitude. Ten or fifteen years ago, students could get their hands on outlines for courses taught in the law school they were attending. In almost every instance the outline was from a previous semester offering of the course, taught by the same professor presently teaching the course.

Now, students at any law school can obtain outlines for just about any course taught at any law school. Recently, my attention was drawn to Outline Depot, which claims to be “the most comprehensive source of law school outlines anywhere.” (emphasis in the original). Perhaps it is, and I’ve not researched that point. Students earn the right to download outlines by accumulating credits, which can be obtained by uploading outlines or by purchasing the credits.

The point to which students are desperate to get their hands on outlines is apparent from what one finds on the site. There are all sorts of red flags and warning bells.

The first problem is that outlines are being uploaded ostensibly for a specific course at a specific school taught by a specifically identified professor, but yet the outline is not an outline of that professor’s course. How do I know this? Because several colleagues here and elsewhere have looked at the outlines purporting to be for their courses and have determined that the outline was not from their class. The topic coverage, the sequence, the particular cases that were discussed, and other elements don’t match. What a waste of credits to download the outline for Prof. X’s course in subject Y at school Z only to discover it’s useless. Won’t it be fun to see the first lawsuit?

The second problem is related to the first. Students are taking outlines from a course in subject A taught by Professor B at School C and uploading it along with a claim that it is an outline for a course in subject A taught by Professor E at School F. Could there be litigation brewing in this sort of misrepresentation?

The third problem is related to the first two problems. The website asks students who are uploading outlines to identify not only the course, professor, and school, but also the book that is being used. Here are some examples of the books supposedly being used at Villanova University School of Law: “unknown,” “?,” “first semester,” “Civ Pro II,” “Crim,” “Sorry not sure,” and “Property- can’t remember name.” What student in his or her right mind would want to use an outline provided by someone unfamiliar with the book used in the course? It’s either a student who was in the course whose work product is highly questionable, or it’s a student at some other school uploading either an outline acquired from a Villanova student through the internet, email, or some other means, or it’s a student uploading some sort of outline from some unknown source in order to acquire credits.

The fourth problem is related to the first three problems. There are outlines being uploaded for courses allegedly taught by faculty who don’t teach the course. For example, there exists an outline for the Business Associations course at Villanova, though there is no such course. It’s called Business Organizations. The faculty member teaching it supposedly is Leonard Packel. I’ve known Len for 36 years. He and I arrived at the law school together, he as a member of the faculty and I as a student. Len is an expert in evidence, criminal law, and trial practice, and a few other areas related to those three in which he has invested his professional career. Len, who is retired, didn’t teach Business Organizations, or Business Associations, or Corporations, or even tax. With that sort of clearly erroneous tagging information for an outline, how can anyone think that the outline is of any value? What sort of litigation will arise when someone downloads this outline, after having paid in some way for credits, only to discover it’s no better than the misleading identifying information?

The fifth problem is related to the previous four problems. There are outlines on the site for subject G taught by Professor H at School J, but Professor H is no longer at School J. Perhaps the outline would be considered useful by a student at School K, to which Professor H moved and is teaching subject G, but it’s not unusual for the scope of a course to differ from school to school, even when the same professor is teaching it, because of constraints or other parameters caused by the particular structure of each school’s curricular array.

The sixth problem is that the site may be misleading students when it claims, as of the last time I visited, to have “37,503 currently approved outlines.” (emphasis in the original). What is an “approved” outline? Do the site operators intend to imply that faculty have “approved” the outlines for their courses? That would be a foolish claim. Do they mean to imply that they themselves, the site operators, have approved the outlines? What does this mean? That they have checked the outlines for substantive errors? That they have verified that the outline matches the course to which it has been linked? Surely not. Yet law students, particularly first-year law students, can easily be fooled by the “approved” tag.

The seventh problem is that at least some of the outlines violate copyright. Several law faculty have discovered that materials and powerpoint slides in which they, or their institutions, hold copyrights are being disseminated without permission. Could this be the makings of another lawsuit? And lest law students think it’s a problem for the web site, if a law student downloads an infringing outline and then re-circulates it, does the law student run a risk of being sued? Perhaps. Perhaps enough to wonder about the utility of grabbing outlines in this manner.

The eighth problem is that the site perpetuates the inadvisable practice of using someone else’s outline to prepare, or cram, for a law school exam. Using someone else’s outline is like watching someone else exercise. It’s not the same as doing it yourself. The benefit of an outline, or any other assimilation device, is that the act of creating it has far more value than the act of having it. The learning comes from the doing, not from the mere reading, memorization, and regurgitation. Law faculty can tell students repeatedly that they ought not waste time or money on outlines produced by others, but law student insecurity, reinforced when there is lack of semester feedback, will overcome the common sense advice they are given by their teachers.

The last problem can be minimized by teaching and examining in ways that devalue the outlines for a course. I agree with law faculty who reacted to the “news” of the existence of Outline Depot by noting that outlines should be irrelevant if a law teacher is doing what ought to be done, namely, getting students to think for themselves and figure things out rather than just gather and repeat information. The secret, as I tell my students, isn’t the answer. It’s HOW one gets to the answer. Teaching tax is a bit easier in this respect because sometimes the answer changes from year to year, speeding up the decline of outline values. A question that presents a problem, and a solution that contains an error, with a request for an explanation of how that error was made, is far more challenging, but also far more worthwhile as preparation to practice law, than a question that presents a problem and asks for “the” answer.

There’s another way to create student reluctance to rely on outlines. When I’ve gotten my hands on outlines for my courses, usually from students willing to share them for some reason, I go through them, look for errors, and presto, exam question. I tell students I do this. It may be that this dampens the market for outlines in my courses.

Let’s face it. If students would put half as much energy into learning by creating their own assimilation devices as they put into getting "the" outline, they would be much happier in the long run and more likely to do well five years out of school. Using others' outlines encourage the "cram and repeat" mentality. As everyone who has been through law school knows, because hindsight is such a great teacher, the best way to learn something is to work with it. One of my colleagues at another school noted that students who rely on outlines rather than “reading, listening, assimilating, and thinking … won’t do well.” He’s right, especially when he adds, “Everyone’s looking for a shortcut. Most shortcuts are longer than just doing the assigned work.” Indeed. I’ve had students ask me to explain why something in so-and-so’s outline for the course conflicts with something in a hornbook or something I’ve said in class. I explain that they’re investing time trying to figure out why an outline has an error when they could be using that time to focus on the course assignments.

What should students be doing? They should be assimilating on their own, they should be doing practice questions, such as the ones at CALI, they should be determining which topics for which they have a good handle on things and those for which they need to upgrade their understanding, they should be going to specific chapters or subchapters in recommended treatises, hornbooks, or student guides that deal with those specific topics, and they should be re-assimilating those topics. It makes no sense to resort to a student outline when it is clear that student outlines are almost always of lesser quality, because I’ve yet to see a student outline that was error-free and up-to-date on the law.

Even if outlines were repositories of correct answers to all the questions that a law professor could possibly ask in a course, outlines would still be worthless in the long run. These sorts of outlines reinforce the student tendency to prefer "information gathering" and to focus on "what's the answer?" Students do this even when there is no "answer" because there is a lack of authority or a disagreement among authorities, such as a circuit split or an IRS position inconsistent with a Tax Court holding. This student approach, and the outlines that enable it, gets in the way of learning. Unfortunately, law faculty who want to get law students into the correct approach to learning are stuck with undoing the effects of too much bad undergraduate teaching styles.

So the students who pay money, or upload outlines that they may or may not be able to identify, in order to get their hands on outlines for a course are wasting their time and their resources. Now that it is so much easier to get outlines, the temptation to do so increases, and the fear of not doing so increases as well. Students who think outlines are the solution to doing well in a course are fooling themselves, for no outline is going to be the solution to doing well in law practice. Law schools cannot ban outlines, but they can continue to emphasize their danger and adverse impact. The existence of Outline Depot doesn’t help in this respect, even if it were providing outlines that didn’t include mismatched, misidentified, and similarly questionable content.

I suppose I write in vain. Outlines have been around longer than I've been teaching and they'll be around long after I'm gone. Oh, well.

Tax Incentives Can Do Only So Much

Last Wednesday, in his State of the Union address, the President put forth several specific suggestions for changes in the tax law:

I'm also proposing a new small business tax credit – one that will go to over one million small businesses who hire new workers or raise wages. While we're at it, let's also eliminate all capital gains taxes on small business investment, and provide a tax incentive for all large businesses and all small businesses to invest in new plants and equipment. . . . . And to encourage these and other businesses to stay within our borders, it is time to finally slash the tax breaks for companies that ship our jobs overseas, and give those tax breaks to companies that create jobs right here in the United States of America. . . . To make college more affordable, this bill will finally end the unwarranted taxpayer subsidies that go to banks for student loans. Instead, let's take that money and give families a $10,000 tax credit for four years of college and increase Pell Grants. . . . To help working families, we'll extend our middle-class tax cuts. But at a time of record deficits, we will not continue tax cuts for oil companies, for investment fund managers, and for those making over $250,000 a year.

Each of these suggestions poses its own set of disadvantages and dilemmas.

There already exists a credit to encourage employers to hire individuals who might otherwise not be hired. There’s no need for a new credit. It’s guaranteed that adding a new credit to the tax law for small businesses that hire new workers or raise wages will add to the complexity and offer more opportunities for the game players to find a way to take a well-intentioned provision and use it for unintended tax breaks for the wealthy. Would it not make more sense to extend the existing credit to cover individuals who have been out of work for more than a specified period of time? As for tax credits to employers who raise wages, isn’t that an objective inconsistent with the need to minimize inflation, a risk that is looming ever larger as the impact of a decade’s worth of federal budget deficits begins to erode the nation’s borrowing capacity? Using the tax law in this manner is unwise, unnecessary, and needlessly complex.

The tax rates that are applied to capital gains arising from selling stock in small business corporations already is near zero. Section 1202, by excluding from gross income one-half of the gain from the sale or exchange of qualified small business stock, effectively cuts the already-low special capital gains rate in half for taxpayers holding that sort of stock. If the president is suggesting that section 1202 be extended to include sales of partnership interests, including LLC interests, that might make sense. On the other hand, whereas C corporations and their shareholders are taxed at least twice on the same income, extending the tax break to partnerships and S corporations isn’t as essential, because those entities permit taxpayers to structure their business operations in a manner that avoids double taxation. The basic flaw in the proposal is that it keeps alive one of the most flawed provisions in the tax law, namely, the taxation of certain investment income at rates lower than those applied to wages and salaries. The capital gains preference encourages all sorts of game playing by those who seek to trick the Treasury into thinking wages or other ordinary income are capital gains. The partnership carried interest trick is one such absurdity, and without elimination of the capital gains preference, the nation is stuck with a tax law that contains an ever-increasing number of “anti-abuse” provisions, such as the one suggested to deal specifically with carried interests, rather than a tax law that removes the root of the problem.

It always sounds good to propose tax breaks for businesses to invest in new plants and equipment, but those tax breaks already exist. Section 179 and section 168(k), for example, to say nothing of the wonderful depreciation deduction for buildings that increase in value during their existence, should be incentive enough for business to make the investments it needs to make. No business is going to make an investment that it does not require just to get a tax break. The problem isn’t the absence of a tax break. The problem is that in order to make these investments, businesses need to borrow, but the banks aren’t lending. The banks, which manage to pay out bonuses to their highly compensated employees, claim they don’t have the funds to lend to business. Granted, the President also has proposed a tax on these banks, but that’s too small and brittle of a stick to persuade banks to get back to the business of lending money to businesses and individuals rather than playing games in sophisticated financial markets that resemble casinos more than quality lending practices.

It also sounds good to propose tax breaks for companies that hire people in the United States, with elimination of tax breaks for companies that hire people outside the United States. Putting aside the restrictions on this sort of tax policy that are presented by assorted treaties and international conventions, this proposal is a two-edged sword. Companies hire overseas because they can find workers for a fraction of the cost that they must pay in the United States. Moving production and other business activities back to the United States, which may be something essential for national security at least with respect to certain industries, means that the cost of the products and services provided by a company that makes this move will increase, unless there is some magic provision unmentioned by the President that would keep domestic salaries low enough to prevent this sort of inflationary development. If prices go up, American consumers will buy less product and fewer services. The lesson is that national tax policy is constrained by global economic forces.

There already exist several tax credits designed to assist individuals who wish to obtain additional education. Perhaps the President’s reference to a $10,000 credit is a suggestion to increase the amounts set forth in section 25A. The difficulty with the credit is that it doesn’t evaluate the quality of the education for which tuition is being paid with the assistance of a federal income tax credit. The energy credits, for example, set forth specific, and rigorous, standards that must be met before purchase of, or investment in, the item in question can qualify for the credit. Perhaps the education credits ought to be reserved for people who pay tuition to universities and colleges that focus on teaching, and whose graduates can pass independent examinations that demonstrate acquisition of sufficient skills, rather than to institutions of higher education so focused on research, development, and athletic competition that too many of their graduates sail through taking soft courses, acquiring inflated grades, and falling on their face when encountering the demands of the workplace or graduate education. Making higher education available to more people without doing something to increase its quality is a waste of tax expenditure dollars.

The idea of extending middle-class tax cuts makes sense considering that the middle class has been ravaged by the misguided economic policies of the past decade. But those cuts are relatively small compared to what the wealthy obtained, so the extension of middle-class tax cuts is as much symbolic as it is valuable. The concept of letting the tax cuts for those making more than $250,000 a year is long overdue, but it needs to be clarified. Is the $250,000 a reference to taxable income? Gross income? Adjusted gross income? It makes a difference? And will there be no difference between those making $500,000 and those making $50,000,000? There should be. Why single out oil companies? Are other industries somehow deserving of having tax cuts extended?

But the President did get something very, very right, much to the annoyance of certain members of Congress who stalked out when the address was finished. He said, referring to the huge budget deficits, “Most of this was the result of not paying for two wars, two tax cuts, and an expensive prescription drug program.” How many times have I argued that it was downright foolish and dangerous to the long-term security of the nation to fight two wars while not only failing to raise taxes but having the audacity to cut taxes for the wealthy at the same time? Perhaps the President read my argument in Peacetime Tax Policy While Waging War = Economic Mess, in which I answered an important question:

Why is there a federal deficit? There is a federal deficit because federal expenditures exceed federal revenue. Why has that happened? It has happened because at the same time federal revenues were trimmed through tax cuts, chiefly benefitting the wealthy, federal expenditures soared on account of the war in Iraq.

Those thoughts rested on something I had pointed out in A Memorial Day Essay on War and Taxation, when I wrote:

War cannot be done on the cheap. War is not free. War ought not be purchased on a credit card. War is a national commitment. Hiding the true cost of war in order to influence a nation's willingness to engage in war is wrong. Ultimately, the price to be paid will be dangerously high.

The time has arrived to pay that price. It will require more than tax credits aimed at stimulating an economy. It will require more than merely letting the tax cuts for the wealthy expire. It will require much, much more.

Freezing Real Property Tax Reassessments: A Nice Idea

As expected, the continuing story of problems with the Philadelphia real property tax assessment system has turned the page to a new chapter. Although the primary focus in recent months has been on the proposal to replace the Bureau of Revision of Taxes (BRT) and the attempts to get the politics out of the process, the underlying issue is the disproportionate, unrealistic, irrational, anger-generating, and often inexplicable array of real property assessments that have been in place in the city for years. Even when the BRT changed its system, major discrepancies remained. On top of that are the special cases, where the assessments of properties owned by persons of influence end up much lower than they should be. My commentary on the BRT’s shortcomings began with An Unconstitutional Tax Assessment System, and was followed by Property Tax Assessments: Really That Difficult?, Real Property Tax Assessment System: Broken and Begging for Repair, Philadelphia Real Property Taxes: Pay Up or Lose It, How to Fix a Broken Tax System: Speed It Up? , Revising the Board of Revision of Taxes, and How Can Asking Questions Improve Tax and Spending Policies?, This Just Taxes My Brain, Tax Bureaucrats Lose Work, Keep Pay, Testing Tax Bureaucrats Just Part of the Solution, and, about a month ago, A Citizen Vote on Taxes.

Now comes news that the city of Philadelphia has put a freeze on real property tax reassessments. The BRT’s new director, Richard Negrin, examined the data that the BRT has been using, declared it “bad,” and determined that he could not “in good conscience” permit valuations to be made on the basis of that information. The freeze will persist for two years, or until the BRT can reassess every parcel in the city using new techniques. According to Negrin, he has “encountered too many errors” in the data and “too little professionalism” within the BRT. Negrin gave examples of the erroneous information. Lot sizes are wrong. Residences are listed as having a number of stories different from the actual floors in the building. Some of the information is so old that it simply isn’t reliable.

Granted, there is a disadvantage to freezing the reassessments. People whose properties are over-valued will continue to pay too much real property tax, and people whose properties are under-valued will continue to pay less tax than they should be paying. Another possible disadvantage was deflected by having the freeze not apply to new construction and rehabilitations. Some debate has arisen concerning the use of last year’s reassessments but it’s unlikely that they will be rolled back to 2008 levels. This means that the assessments on 18,000 properties determined under the flawed approach put into effect last year will be left alone, even though there is significant evidence that they are way out of line. Yet the ability of property owners to challenge assessments individually has not been affected, so it is not unlikely that many of the property owners caught in this bind will appeal. In fact, there already are appeals underway charging that the most recent batch of reassessments are flawed.

In the meantime, one of the patronage employees at the BRT has sued the city’s mayor in an attempt to return the BRT to judiciary control, claiming that there’s no legal authority for the mayor’s takeover of the agency. The plaintiff claims that she ought not be compelled to “choose between her $36,000-a-year position and her role as ward leader,” claiming that she and the other patronage employees are “scapegoats.” She argues that the patronage employees “have nothing to do with the assessments.” Then what are they doing? Isn’t the entire work of the BRT a matter of assessing real properties? They may not be out viewing properties, but perhaps they should be. Perhaps then there would be fewer instances of lot and building size errors.

Considering the mess that the Philadelphia real property tax system has become, there is little sense to continue what has been going on, because that will make matters even worse. The freeze is a sensible approach, but its effectiveness will depend on Negrin’s success at getting the BRT to perform a proper city-wide reassessment. All in all, the freeze is a nice idea. My apologies for the awful wordplay buried in that last sentence, and in the title to this post. I could not resist, even after reassessing the wisdom of sharing it.

Federal Ready Return: Theoretically Attractive, Pragmatically Unworkable

The New York Times has jumped onto the “federal Ready Return” bandwagon, a theoretically attractive idea that has been floating around for awhile but that is destined to crash on the rocky shores of tax reality. In Why Can’t the I.R.S. Help Fill in the Blanks, business professor Randall Stross argues that because “important data from employers and financial institutions” are in “government computers,” the IRS should prepare individuals’ tax returns. He quotes law professor Joseph Bankman, one of the most zealous of Ready Return’s advocates. The idea of Ready Return is one of those dangerously great-sounding ideas that just won’t hold up when closely examined.

The notion of having the IRS take an approach similar to the California “Ready Return” experiment is alarming. When the California version was instituted, I criticized it, in in Hi, I'm from the Government and I'm Here to Help You ..... Do Your Tax Return and in ReadyReturn Not a Ready Answer. In those two justifiably long analyses of the defects of the program, I pointed out that conflict of interest permeates the arrangement, noted that the track record of government employees in these sorts of situations is too far from ideal, explained how the idea opens the door to fraud, poses logistical problems, tricks millions of taxpayers into thinking that complicated tax laws are not their problem even though they continue to pose a threat to the national well-being, and puts taxpayer privacy at risk. Joined by many other critics, I tried to explain to the advocates of Ready Return why it was the typical "good idea in theory" that falls apart in the real world of tax practice. Some months later, in Ready It Was Not: The Demise of California's Government-Prepared Tax Return Experiment, I commented on the decision by the California Franchise Tax Board to terminate the Ready Return program. Yet, its opponents continued to lobby against the program, which in As Halloween Looms, Making Sure Dead Tax Ideas Stay Dead, I suggested was the consequence of a fear that it would be resurrected. And, indeed, as I discussed in Oh, No! This Tax Idea Isn't Ready for Its Coffin, I reacted to the restoration of the program, warts and all. What was particularly disturbing was the fact that state administrators restored the program even though the legislature had cut off funding and authorization.

The advocates of Ready Return, both in California and at the federal level, point to the “high praise” received from taxpayers using the program. Stross joins this chorus. But, as I pointed out, few, if any, of those taxpayers knew or know if their returns are correct. In Getting Ready for More Tax Errors of the Ominous Kind, I discussed the revelations in The Report of the Treasury Inspector General for Tax Administration, Ensuring the Quality Assurance Processes Are Consistently Followed Remains a Significant Challenge for the Volunteer Program concerning the high level of errors made by the IRS in dealing with taxpayer’s returns, computing tax, and determining refunds.

I have previously asked who audits the returns prepared by the California Department of Revenue. The Department itself? Who would audit returns prepared by the IRS? Taxpayers would end up taking these “tentative” returns to tax return preparers or using software to see what results it generated, so the alleged efficiencies of a federal “Ready Return” is another theoretical construct that falls apart when put to the test in the practical world. Only the most trusting, and naïve, of taxpayers would do anything less but prepare their own return, or pay an independent third party to do so, even if the IRS had put a proposal on the table. It’s not as though eye-balling a proposed return from the IRS is as simple as determining if the sales tax on a store receipt makes sense. The federal income tax law is way too complicated, even for the taxpayers who supposedly have “simple” returns. There is no such thing as a simple federal income tax return.

Stross claims that the current system is the equivalent of credit card companies asking customers to fill out their own monthly invoices using receipts. He does not address the fact that checking a credit card invoice is very easy, because it requires only that the customer compare receipts to what’s on the invoice. Unlike the federal income tax system, the receipts aren’t separated into various categories, subject to varying floors and ceilings, discounted if a particular number of exceptions to exceptions to a general rule apply, and held up against an ever-changing set of rules. When the federal income tax system is converted into something as simple as adding up credit card receipts, then a federal Ready Return might deserve serious attention.

The current Administration, supporters during the campaign of pre-filled tax forms, discovered that the sound-bite didn’t fly when put to the test. Information doesn’t reach the IRS in time to get pre-filled or tentative returns out to taxpayers in time to give them ample opportunity to review the proposed return and then file by April 15. Stross deals with this issue by suggesting that the deadlines for filing information returns with the IRS be advanced to earlier in the year. I wonder how many employers, corporate payroll departments, and bookkeepers at small business operations were interviewed to determine if it is feasible to shut down for several weeks at the beginning of the year in order to process this information. Perhaps it is. But I doubt it.

One California official who advocates for Ready Return, perhaps because it reduces the cost to the state of processing returns, claims that one of the “most formidable obstacles” is publicity. Is it a matter of people not knowing about it? That doesn’t make sense. The state sent out 2 million Ready Returns but only 60,000 taxpayers succumbed to the arrangement. What about the other 1,940,000 taxpayers? Can it be said they did not know about it? Hardly. If there is a publicity problem, it’s the warnings being issued with respect to the high risk of having the government prepare the taxpayer’s return and then, if at all, audit the return that it prepared, with taxpayers who want to be certain that the return is correct having to go through the same process and expense that they already endure. Perhaps this official wants to say that adverse publicity is one of the most formidable obstacles. This official does mention the efforts of those opposing the program, claiming that “the most vigorous opposition comes from companies that sell tax-preparation software,” yet how would that explain my opposition, which surely doesn’t fall that far short of being vigorous? I don’t own any interests in companies selling tax-preparation software. Let’s face it, if the IRS adopts a federal Ready Return, tax return software companies would have a ready advertising opportunity, namely, offering its products as tools to check on the accuracy of returns prepared by an agency so long underfunded that it’s not surprising it makes so many errors processing returns.

Stross criticizes the IRS FreeFile initiative, even though it provides cost-free tax return preparation to low-income taxpayers, because, in part, it does not use IRS software to perform tax calculations. Are federal Ready Return advocate like Stross oblivious to the many stories about the miserable condition of IRS computers and data processing? It’s a blessing that IRS software is not used in the FreeFile Initiative.

I’ll ask again a question I asked in a previous post. Would citizens prefer food stamps or meals prepared by government employees? And I’ll repeat what I said in that post, “It's possible to assist citizens without taking control of their lives, a point too often lost on elected officials, and almost always ignored by appointed bureaucrats.” Perhaps there is some hints of why California’s Ready Return attracts only 60,000 of 2,000,000 eligible taxpayers. Again quoting my earlier post:

According to this study, "The percentage of Americans who trust the government in Washington plunged from 76 percent in 1964 to 25 percent in 1996." A May 2006 poll indicates that 63% of the people do not trust government, and that 78% think the federal government has too much power. In California itself, according to this recent survey, 29% of those polled "say they trust the government to do what is right just about always or most of the time." I wonder what the other 71% think about the state government doing their tax returns.

Ready Return does so little, if anything, to deal with the problems in the federal income tax system, and yet poses so many risks, that the energy devoted to making it ubiquitous would be better invested in simplifying the tax law. As I've previously noted about Ready Return, "Be afraid. Be very afraid."

Surely the Poor Are Not Responsible for the Tax Law Mess

In Wealth, Taxes, Politics, Jim Maule’s Surrebuttal, and the Hierarchy of Needs, Peter Pappas responds to my latest posting in our dialogue arising from the question how disproportional wealth representation in Congress affects tax and other policies. In Is It Any Wonder That the Tax Law is a Mess?, I wrote "The ranks of the wealthy are packed with people who, if not criminals, have engaged in morally, socially, and theologically questionable or inappropriate behavior," as part of attempting to rebut the notion that a Congress of predominantly wealthy individuals is a good and welcome situation because, as Peter Pappas has argued, wealth represents success, diligence, and sacrifice, thus making for the sort of people we should have representing us in Congress.

Mr. Pappas attempts to knock down my proposition by noting that "The ranks of the poor and middle-class are likewise packed with people who have engaged in morally, socially and theologically questionable or inappropriate behavior." (emphasis his). That is undeniable, but irrelevant. So, too is his assertion that "[I]t’s universally accepted that there exists an inverse relationship between crime – especially violent crime – and wealth." Though there have been occasional crimes of violence by members of Congress, both in and outside the chambers, the sort of crimes, and other inappropriate and harmful behavior, that threaten the representational democracy on which the nation is built are far more nefarious because they are so lacking in the sort of 11:00 news characteristics that put the spotlight on the violent side of criminality. When dealing with the sort of crime and other antisocial behavior that taint the political process, there is no inverse relationship between crime and wealth. The poor and middle class are too poor to afford to pay for seats in Congress.

Mr. Pappas then attempts to defend his position by noting that "Lord Acton's dictum holds, power and corruption are synonyms not because the corrupt seek power, but because those who obtain power become corrupt by virtue of having obtained it." Though there is some truth to this perspective, there also is the reality that when it comes to Congress, we're not dealing with people summoned by call in the tradition of Cincinnatus who then, having been thrust into membership in an institution of power, evolve from people of servant-leadership to ruthless power addicts. No, when it comes to Congress, we're dealing with people already addicted to power, who often begin their adult lives by seeking education that allegedly prepares them for political careers, including, sadly, law degrees, and who then base every career, and almost every other move, on the goal of attaining a position of political power, Congress simply being one of the flagship opportunities to experience political power of the almost highest sort. It may not be quite as a powerful place as the White House, but the chance of getting there is more than 500 times as much. It may be true that some who enter politics are not corrupted at the outset, but by the time they work their way through the process and reach the stage of running for a position on Capitol Hill, the damage has been done.

Finally, Mr. Pappas notes that "Power tends to corrupt – and it corrupts the poor and weak just as readily as it does the rich and strong." There are two fallacies in this proposition. First, the sort of corruption to which we are giving attentionis a corruption fueled by money, particularly money in politics. The wealthy have money. The poor do not. Second, even the segment of the poor and middle-class who, as Pappas puts it, "are likewise packed with people who have engaged in morally, socially and theologically questionable or inappropriate behavior," are not in a position to exert the sort of corrupting influence of which I am so critical when it comes to the terrible job that Congress is doing with tax law and tax policy, as well as a long list of other national issues. The pollution of politics with money has pushed the poor out of the arena of representational democracy. That, in turn, despite earned income tax credits and other inducements, shoves those who are far from wealthy into positions of despair and indifference, which in turn not only feed the sort of crime more prevalent among the ranks of the economically disadvantaged, but also smooth the road to power for the wealthy who seek to do something with their money other than build lavish mansions, purchase huge yachts, or gamble on the stock market and with the nation's economic health. And the mess that they have made of the tax law, the economy, and all sorts of other matters is obvious.

Getting Tax Help

As we near the end of January, the specter of tax filing season begins to loom over our heads. Some people can afford to pay a professional tax return preparer to do their tax returns. A few brave souls do their own returns, many of them using tax preparation software. Yet there are millions of people lacking the resources to pay a professional or to purchase software, and who do not have the ability, or desire, to do their own returns. Too many of the people in this category end up paying a discount rate to a discount preparer. Some of the difficulties with the quality of work done by unqualified preparers gathered attention in Shakeout in the Tax Return Preparation Industry?.

So what can a person do when that person has limited resources and lacks the ability or confidence to prepare his or her own tax returns? The answer is simple. Get help. There are numerous volunteers, trained in doing tax returns, and offering their time on a pro bono basis, ready to help those who are in need of assistance. For decades, the IRS has sponsored the Volunteer Income Tax Assistance (VITA) Program. Volunteers with Tax Counseling for the Elderly (TCE) direct their talents to assisting individuals who have attained the age of 60. The American Association of Retired Persons (AARP) not only reach out to those who are 60 or older, but also low-income and certain middle-income taxpayers.

A practical problem for many taxpayers is finding a place to which they can go to obtain help. Rather than relying on word-of-mouth, serendipitous announcements in newspapers or church newsletters, happenstance observation of a storefront VITA, TCE, or AARP site, or tedious construction of internet search terms and careful culling through the results, taxpayers can now turn to the Taxpayer Assistance Programs Finding Tool.

The TAPFT is brought to us by Andrew Zumwalt, Director of the MoTax Education Initiative. The initiative, in turn, is one of many projects undertaken by the Human Environmental Sciences Extension. Its “goal is to improve the quality of life of people in the environment in which they live, work, learn, and relax.” Surely, helping people find tax return preparation assistance improves quality of life.

Having spent a few minutes playing around with the TAPFT, I’ve concluded that it is rather thorough. I had not realized how many tax return assistance sites were operating in my home county or in the adjacent ones. There are more than a few. That’s good news, because the state of the economy suggests that there are going to be more people unable to purchase software or retain a paid preparer and more people qualifying for assistance because their incomes have decreased. All of that is topped off with the bitter fact that Congress has made the tax law applicable in 2009 even more difficult, complex, challenging, and frustrating than the law that applied in 2008.

The TAPFT generates a list that can be accessed, after selecting the relevant state, by county or town. For each tax assistance site listed, the TAPFT presents its address, phone number, type of site, whether it provides federal electronic filing and state electronic filing, whether an appointment is required, the languages spoken by the volunteers, and the dates of operation. It also includes a link to a map showing the location.

Spread the word. I doubt very many people who will be needing tax preparation assistance read this blog. But perhaps those who do read the blog know people who need such help. Perhaps they are involved in an organization that publishes information about tax assistance, be it a church bulletin, club newsletter, or even newspaper column. Pass along the URL: http://extension.missouri.edu/hes/taxed/vitasites.htm. Andrew Zumwalt has done the nation’s taxpayer a useful and appreciated service.

Is It Any Wonder That the Tax Law is a Mess?

My recent post, If A Wealth-Dominated Congress is So Great, Why Are Taxation and Other Policies Such a Mess? , a reply to a Peter Pappas post, Two Professors, an Angry Bear and Hate the Rich Syndrome, which was in part a reaction to a point I made previously in A Tax Policy Determination Clue, has brought a further response from Mr. Pappas. In Professors Maule and Beale Respond; Pappas Cowers then Regroups, he addresses, among other things, several of the statements I made in If A Wealth-Dominated Congress is So Great, Why Are Taxation and Other Policies Such a Mess? .

Mr. Pappas disagrees with my contention that "ordinary folks tend to bring far more practical experience and common sense to the table than those who have lived inside academia or some other sheltered place before turning to life in the world of politics." I made that point to refute his position that "we should not elect legislators of ordinary intelligence, education, and diligence." In contesting my contention, Pappas claims I rely on a faulty premise, namely, "the conclusion that ordinarily intelligent people would make better legislators than extraordinarily intelligent ones" and that I make a common error in thinking that "the possession of a formal education precludes the possession of common sense or 'street smarts.'" Pappas asserts that "the opposite is true. It's more likely that a formally educated, successful person has common sense and street smarts because those are traits that tend to cause someone to recognize the value of a higher education and embark on a plan to obtain it."

There are several flaws in the assumptions and approaches that Pappas brings to the question of representational democracy, the national value that I think is in jeopardy because of the disproportionate presence of, and power exercised by, the wealthy in Congress, and, secondarily, among those who lobby and influence the Congress. Each one deserves a bit of attention, because they turn our attention to how our nation is governed, including how our nation's tax policy and tax laws are developed.

First, it is important to understand that intelligence and higher education do not go hand-in-hand. There are more than a few examples of people with higher education degrees who aren't all that intelligent. Worse, there are many intelligent people who lack higher education, not because they lack "traits that tend to cause someone to recognize the value of a higher education" but because they are so mired in economic deprivation, responsibilities to care for aged or ill family members, or other disadvantages that their ability to use their natural intelligence to obtain a higher education is tempered, and outweighed, by their moral convictions that keep them loyal to their responsibilities and to refusing to "sell out" in order to escape economic woes.

Second, though higher education does not succeed in wiping all of its participants clean of street smarts, it does a pretty good job of imposing the theoretical in place of the practical, or at least putting the theoretical in a more predominant position than the practical. America's politicians, for the most part, emerge from educational experiences that prepare them to enact the sort of legislation that is defensible on theoretical grounds but that falls apart when practical implementation is required. Is it any wonder that tax policy, tax laws, health care reform, securities regulation, improvement in K-12 education, or any other of the long list of life experiences and activities to which Congress has turned its attention end up becoming wastelands of futility? With all that education, how many members of Congress learned how to do their own tax returns? Or understand the basic principles of elementary education? Or have the skills requisite to get to the root of the health care crisis? In contrast, the nation has a solid cohort of people lacking higher education experience but who know how to get things done efficiently, effectively, and successfully. Unfortunately, wealth so taints the representational nature of our democracy that these folks have little, if any, chance of getting to Congress.

Third, there is no proof that I am incorrect in suggesting that "ordinarily intelligent people would make better legislators than extraordinarily intelligent ones." There is, of course, plenty of proof that the opposite claim, "extraordinarily intelligent people would make better legislators than ordinarily intelligent ones," is false. The proof is available by looking at the Congress. Its work product is awful, and though I am in a better position to critique the tax law that it has bestowed on us, I have sufficient ordinary intelligence to understand the mess it has made in so many other areas of our national life.

Fourth, the question really isn't one of ordinary intelligence versus extraordinary intelligence. It's a question of what happens when money and wealth corrupt values. To quote someone whom I've known my entire life, "There are plenty of intelligent people sitting in prisons. It's not whether a person is intelligent, it's what a person chooses to do with it." When the street smarts being exhibited by highly educated people consist of the ability to gather campaign contributions with promises never meant to be fulfilled, to take credit for others' work, to say one thing so convincingly when the opposite is intended yet disguised, to sell out principles for power, to put self-interest above national interest while appearing to be champions of the common good, street smarts become something other than common sense. Common sense is what tells someone that a proposed policy or implementation of a policy won't work, and a person rarely can figure that out without experience that touches upon all facets of life, not just the small subset that characterizes the world of the wealthy.

The point isn't a matter of intelligence, which, of course, can be measured in many ways. The point is one of wealth and representational democracy. The notion that wealth represents success, and success represents intelligence, and that intelligence is best over-represented in Congress, falls apart at every stage. Wealth represents material success, but has nothing much to do with moral or spiritual success. The ranks of the wealthy are packed with people who, if not criminals, have engaged in morally, socially, and theologically questionable or inappropriate behavior, ranging from the sale of defective products, through the exploitation of powerless and desperate workers, to purchasing influence to change the rules to their own benefit at the expense of others. Though many may admire these tactics, once the desire for wealth is pushed aside, it is easy to see the extent to which the addiction to greed, when pushed beyond sensible limits, jeopardizes the nation and representational democracy. To claim that success represents intelligence is to presume that there cannot be success without intelligence, a presumption that flies in the face of everyday experience. The presumption can be rebutted and supported by playing games with the definition of intelligence and the definition of success, but for many, happiness in life is success enough, and some of the happiest people in life are those whose shortcomings in intelligence, at least in the sense Mr. Pappas and I are considering it, are an advantage. The claim that intelligence is best over-represented in Congress is disproven by the track record of a Congress that, in comparison to what it has been in the past, is far more educated and arguably even more intelligent but whose work product is horrifically bad as written and even worse as applied. In other words, defending the Congress as it has presently evolved is to defend the antithesis of what it's supposed to be.

Mr. Pappas tries to solidify his position, one that has its origins in his objections to my criticism of the disproportionate representation of, and exertion of power by, the wealthy, by drumming up a canard, specifically, Sarah Palin. He asks, "And does Professor Maule truly believe we should have legislators of merely ordinary intelligence. I wonder, for instance, what he thinks of Sarah Palin, who has been roundly vilified by the left for her ordinariness? Does Mr. Maule think her ordinariness makes her exceptionally qualified to be the President of the United States or maybe a congressman?" These questions presuppose that what I consider qualification for the presidency is the same as what I consider to be qualification for membership in Congress. Though the percentage of presidents who have been wealthy exceeds the national norm, it is important to note that some of the best presidents were not wealthy, and that many of those from wealthy backgrounds failed miserably. So much for the presumed connection between wealth and intelligence, and between wealth and success. As for Sarah Palin, the vilification was not a matter of her alleged ordinariness but a matter of her stupidity. She is no ordinary person. Only a person extraordinary in some way can win beauty pageants, though the particular extraordinary characteristics that emerge in that sort of success may or may not translate into legislative effectiveness. What caused so many people to turn away from Sarah Palin wasn't her ordinariness, assuming she can be considered ordinary, but the stupidity of some of the things she uttered and the appalling lack of judgment she demonstrated with respect to a variety of concerns. My support for putting into Congress people who are of ordinary intelligence with practical experience in activities that matter to the governance of a country, including an understanding of how elementary education, the health care system, and infrastructure works and should work, even if they happen not to be wealthy, does not mean I support putting into political office those with less than average intelligence whose experience lies in frivolous activities almost as disconnected from most people's lives as are the theoretical pontifications of too many of those who inhabit the faculties of higher education.

Lest my defense of representational democracy be taken as an objection to increasing the educational attainment of Americans as a whole, I must emphasize my repeated support for more education and my repeated calls for reform of education. The two are intrinsically linked not only to each other but to the problem of America's shift to a nation dominated by a wealthy elite. More education, whether it's the insertion of tax education into high school curricula as I've long advocated, or finding ways to permit capable individuals otherwise denied access to higher education to enter colleges and universities, can do nothing but make it more likely that increasing numbers of Americans will acquire what it takes to see what is happening in the Congress and to figure out that voting for more of the same guarantees more of what inspires so many citizen grumblings about the decline in the quality of their lives. Yet more education is useless if it, too, is more of the same, education that values concept over application, theory over practical, bottom-line profit over values, self-centeredness over altruism. Some movement away from the educational failings of the past five decades is being detected. Whether it becomes a growing trend or is cut off in some manner by those who feel, and ought to feel, threatened by this development remains to be seen.

Interestingly, at the conclusion of his post, Mr. Pappas discloses that he agrees with me that "we should take the money out of politics." How that can be done is a vexing question. Yet, he claims to "disagree that we should take the money out of politicians." Clever. My point is that we need to take the moneyed power-seekers out of politics. And then if we take the money out of power-seeking we may end up having taken the money out of politics.

Mr. Pappas closes his post with a worthy footnote, in which he tries to explain why he looks at things differently than do I. He cites Steven Pinker's The Blank Slate: The Modern Denial of Human Nature, in which the author contrasts two world-views, the Tragic Vision and the Utopian Vision. Pinker in turn relies on Thomas Sowell's A Conflict of Visions. The Tragic Vision sees humans as "limited in virtue, wisdom and knowledge," thus justifying social arrangements reflecting those limits, whereas the Utopian Vision sees those social arrangements as the cause of those limits. Tying the Tragic Vision to "rightists" and the Utopian Vision to "leftists," Pinker's explanation of Sowell includes the assertions that "Rightists tend to like tradition (because human nature does not change), small government (because no leader is wise enough to plan society), a strong police and military (because people will always be tempted by crime and conquest), and free markets (because they convert individual selfishness into collective wealth)" and "Leftists believe that these positions are defeatist and cynical, because if we change parenting, education, the media, and social expectations, people could become wiser, nicer, and more peaceable and generous." Pappas concludes that he holds the Tragic vision and accordingly is a "conservative" whereas I hold the Utopian vision, making me a "liberal." To this I say, "Hah." Trying to categorize me, whether based on what others perceive or on those various tests that measure where a person is on the left-right spectrum, is not only near impossible, but certain not to pin me to either end of the spectrum. My vision is a theological one, namely, people surely are flawed (Tragic Vision) but have been, and can choose to accept or reject, redemption (Utopian Vision). So, yes, I think that if we improve education and parenting, we will raise nicer and more sensible children. I believe in a truly free market but I don't think any such thing exists or has ever existed, and will not exist without societal intervention. I favor wisdom and peace, but common sense tells me that a weak or non-existent police and military guarantees chaos. I relish many traditions and some of tradition, but I'm not unwilling to support change when a persuasive case has been made for dealing with a problem. I also believe in standing up to greed, to deception, to disloyalty, to breach of fiduciary duty, to corruption, and to economic exploitation, which explains why I continue to criticize the Congress, its membership, its work ethic, its enacted legislation, its terrible tax policy, its ruination of the tax law, and its many other failings. I cannot see how those holding to the Tragic Vision, those holding to the Utopian Vision, and those of us holding to something other thant those two visions, cannot agree that when it comes to Congress America deserves far better than what it is getting.

Non-Shocking Tax Shockers

The Government Accounting Office has issued a report in which, relying on data from the IRS National Research Program, it discloses that 68 percent of S corporation returns filed for 2003 and 2004, the last years for which information is available, contained errors. It also noted that, citing an earlier report, 70 percent of sole proprietorship Schedules C have errors. This news may be shocking to some, but it’s not shocking to those who live in the tax practice world and to those living outside of that world who pay attention to what has been happening to federal tax law during the past several decades. It’s a wonder that 32 percent of S corporation returns and 30 percent of sole proprietor filings were error-free (or at least were not found to have errors, which isn’t the same as being error-free). Of all the business entity returns, these two are far from the most complex. If the error rate on S corporation returns is at 68 percent, the error rate on partnership returns must be close to 100 percent. Or more. S corporation taxation isn’t rocket science compared to partnership taxation. There’s no section 704(b) special allocation complexity, no section 704(c) contributed property allocation challenges, no section 743(b) or 734(b) optional basis adjustments, no section 732(d) special basis adjustments, no section 736 maze, no section 751 ordinary income asset analysis, to identify but some of the far more challenging provisions of subchapter K.

A few days before the GAO released its latest report, the Commissioner of the Internal Revenue Service disclosed in a C-SPAN interview, according to, among other sources, The Capitolist, that he does not do his own tax return. Why? He “finds the tax code ‘complex.’” Instead, the Commissioner hires a tax return preparer to do his return. Goodness. The Commissioner of the Internal Revenue Service does not even try to do his own return using software such as Turbotax. What I want to know is whether he CAN do his own return. He says he has been using a preparer “for years.” If he lacks confidence about his ability to do his own tax return, why not prepare the return and then have someone review what he has done? That is a learning experience, not only in terms of the substantive law that is involved, but also in terms of acquiring some empathy for what millions of taxpayers must endure, or pay someone else to endure, every year. How complicated could the Commissioner’s tax return be? It surely isn’t anywhere near as complicated as a partnership return.

The GAO report makes the following suggestions to deal with the horrific noncompliance rate in the S corporation area:

Identify and evaluate options for improving the performance of paid preparers who prepare S corporation returns, such as licensing preparers and ensuring that appropriate penalties are available and used.

Send additional guidance on S corporation rules and record-keeping requirements to new S corporations to distribute to their shareholders, including providing guidance on calculating basis and directing them to the specific IRS Web site related to S corporation tax rules.

Require examiners to document their analysis such as using comparable salary data when determining adequate shareholder compensation or document why no analysis was needed.

Provide more specific guidance to shareholders and tax preparers, such as that provided to IRS examiners, on determining adequate shareholder compensation through means such as IRS’s Web site.

In other words, it’s pretty much a matter of trying to get more people to understand the rules. That’s fine, but it’s only part of the solution. Very few people understand quantum physics, and only a handful more understand the federal tax law. The GAO reports prove that the problem is deeper than tax education, though tax education, done properly, might wake up Americans to the need for sending more powerful messages to the Congress that its manner of doing business with respect to taxation is no longer tolerable.

The key element of any solution, of course, is to clean up the tax law. Duh. When asked how he would make the tax less complex, the IRS Commissioner said, “I don't write the tax laws. Congress writes the tax laws. It's a whole different discussion.” Was this an attempt to avoid offending Congress by pointing out what it could have done differently and should be doing now? Was it the consequence of not understanding the tax law well enough to be in a position to point out ideas for simplifying unjustifiably complicated provisions in the tax law? No matter, it’s just one more bit of evidence demonstrating the disarray into which federal income tax administration continues to sink.

When people do not understand a law, their ability to comply diminishes. When the percentage of people complying with the law diminishes, the risk of the law becoming ineffectual increases. At some point the law becomes something very hollow. When that happens to the law that is the lifeblood of the nation, the nation will go into need of critical care. Then what?

Yes, I Am . . . Cool with Technology

Joe Kristan, of Tax Update Blog, asks, in his post When We’re Boring, We Demand Your Full Attention, “The TaxProf is cool with technology. What about Villanova's tax maven Jim Maule?” The question makes sense only in the context of Joe’s post, which is a brief reflection on Paul Caron’s post on Tuesday, Albany, Chicago & Villanova Ban Laptops in the Classroom. The post title is a bit misleading, because there is a difference between a Villanova banning laptops as a matter of school policy, which is not the case, and individual professors banning laptops, which is in fact what has happened. Though the banning of laptops by law school faculty is not news and had been going on for as long as there have been laptops, the fact that some Villanova faculty were doing so, in increasing numbers, is news. What triggered Paul’s post was an article at AbovetheLaw, which presented the news in editorial fashion, Boring Professors Ban More Interesting Things in the Classroom.

My conclusion is that I am cool with technology reflects not only the fact that I do not ban laptops in the classroom, but instead encourage their use, but also my eagerness to use technology in ways that improve, or at least that I think improve, my teaching. My use of Powerpoint slides reaches back more than a decade. My use of student response pads doesn’t go back quite as far, but it’s now entrenched in my J.D. courses, with use in Graduate Tax Program courses awaiting a cooperative effort for all, or most, of the Program’s courses. My authorship and use of computer-assisted tax law instruction exercises originates in the late 1980s, when the technology and software for doing so was almost hilariously rudimentary when compared with what now exists. So I suppose I’m cool with technology.

My decision to encourage, rather than prohibit, laptop use in my classes rests on the value I place on that use. Laptops permit students to take notes in a manner that permits them to make additions and corrections in real time without needing to interlineate previously handwritten material or to use arrows, circles, and numbered or lettered references to indicate that something on page 12 of their notebook belongs with something on page 8 because something taking place 20 minutes into a discussion of an issue illuminates a point made 2 minutes into that discussion. Laptops permit students to look at material that I provide to them through the Blackboard classroom without destroying several forests by printing out everything. Laptops permit students to work with digital versions of relevant Internal Revenue Code sections and Treasury regulations without needing to drag two-inch thick, five-pound books into the classroom. Laptops permit students to annotate the slides that I make available to them, so that they don’t need to invest time writing what already has been written. Laptops permit students, few of whom have legible handwriting, to take notes that they are able to read after leaving class, sparing them, and me, the agony of a visit to my office where they ask me to repeat what I said, not that I ever can remember the exact words, in an attempt to figure out a word or two in their notes that they cannot read. Laptops make the post-class assimilation process more efficient.

It is true that laptops pose several potential disadvantages. Each of these, however, can be eliminated or diminished through effective pedagogical techniques.

One concern is that laptops permit students to make verbatim transcriptions of the class session. As a matter of precision, laptops make it easier for students to make verbatim transcriptions. Students have been making verbatim transcriptions of classes since long before laptops arrived on the scene. The likelihood of students making verbatim transcriptions increases tremendously if the class consists of lectures. It decreases if other forms of teaching are adopted, though some of those can tempt students to use laptops for other purposes, as I discuss in a subsequent paragraph. The view that some students have, that every word spoken in class matters, can be dispelled by demonstrating early on why that is not so, and putting students through exercises that illustrate the relative importance of the concept or thought and the relative unimportance of the specific words. Encouraging students to put things in their own words, aside, of course, from situations in which statutory or other language is critical, is one of the goals of legal education. A student who is being compelled to speak, or to do something, will find it impossible to write or type very much while speaking or doing something else.

Another concern, and one that gets much attention, is that laptops permit students to engage in activity unrelated to the class, thus taking their attention away from what is happening in the classroom. Some schools permit faculty to request a disconnection of Internet access in the classroom while the course meets, but that step does not prevent students from using games or other software loaded on their laptops. Yet laptops are far from the only distraction available to students. Long before there were laptops, there were, and still are, crossword puzzles. There existed at one time, and for all I know there may still exist, bingo games, some involving money and betting, based on what favorite expressions of the professor are uttered during a particular class. There was note-passing, an activity supplanted by phone texting, and it’s unclear to me whether laptop prohibitions extend to the use of phones, an activity not as easily perceived as laptop use. There even was, and reportedly still is, sleeping. A student who chooses not to focus on what the professor wants to occur in the classroom will tune out no matter what. The key is to entice the student into wanting to focus on the class. When one or a few students are selected ahead of time to engage in dialogue with the professor, students are tempted, and often yield to the temptation, to engage in other activities until the dialogue, often inefficient and disjointed, generates something worth writing down or typing. I’ve seen first hand, observing other courses, how students make excellent use of the ALT-TAB key combination. Once word gets around that one cannot do well on the exam without having attended, and having paid attention, in class, the level of participation in activity not related to class drops considerably. Once word gets around that having a commercial or other outline from which one can memorize black letter law to be regurgitated on an exam is useless for the exam, the level of participation in class-related activity increases. If, knowing the value of classroom focus, a student chooses to play games or surf the Internet on his or her computer, that student is being foolish and deserves the consequences.

Neither of these two concerns presents much of a problem in my J.D. courses. Because I keep the students busy, for the most part, answering student response pad questions, they need to look at the projection screen, they need to look at what they prepared before class, they need to look at the Code or other materials. They know ahead of time whether or not their answers will count toward their course grade, but even if the answer does not count, they are so eager to find out if they “have gotten it” and so curious to see what their classmates are doing that they turn their attention to the classroom activity. In some ways, there is an element of game playing built into using student response pad questions. By involving all students simultaneously, there are far fewer instances of students becoming disinterested in the ramblings, off-the-mark responses, or uninteresting opinions or statements offered up by the one or few students engaged in direct dialogue with the professor. All of this comes at a cost, however. Building up an inventory of hundreds of questions takes time, a lot of time, because one must determine what to ask, how to ask it, what options to provide to students, and how to work through the answers after the students have made their choices.

Yet another concern, also getting much attention, is that laptops permit students to engage in activity that is distracting, or even offensive, to other students. This is a serious concern. It’s not, however, as though there are no other activities unrelated to class that can distract other students. Being asked to pass along a note is distracting. Being asked for assistance with a crossword puzzle is distracting. Noticing the student in the next row reading Sports Illustrated is distracting. Listening to people speak some version of the word “bingo” out loud is distracting. Watching someone doodle is distracting. Watching someone write comments about the professor or another student is distracting. Having attention drawn to a student’s newly acquired diamond engagement ring is distracting. Shifting forward in one’s chair to permit a late-arriving student to take a seat is distracting. Watching a late-arriving student enter the class attired in an attention-getting manner is distracting. No, I did not need to make up these examples. Each one occurred at least once during my student days, and some were repeated during my teaching days. Rather than banning laptops, magazines, newspapers, diamond rings, late arriving students, unapproved attire, and bingo cards, I prefer to maintain a rule that bars distracting behavior of any sort. Students who encounter distracting or offensive behavior are entitled to bring that to my attention. If they do not do so, they are making the same foolish choice as is being made by students who decide to engage in activities not related to the class rather than focusing on doing what needs to be done to do well in the course.

One supposed concern, noted in a comment to the AbovetheLaw posting, isn’t a concern. The complaint that the use of laptops generates distracting keyboard noise flies in the face of the quiet keyboards incorporated into pretty much every laptop built during the past five years. I’ve not noticed any such noise. Whatever sound keyboards might generate is masked by the sound of my voice or the voice of whichever student is speaking at the moment.

Many of those who offered comments to the AbovetheLaw posting suggest that they use laptops for activities unrelated to class because the class is boring. Some go so far as to claim that they would avoid class but for the recent trend in law schools, triggered by accreditation issues, of enforcing attendance policies. The faculty at Villanova who have told me that they have banned the use of laptops are not boring people, not by any stretch of anyone’s imagination, so I wonder why students in their courses had been playing games or surfing the Internet. Perhaps they weren’t and the faculty made a preemptive strike. Students who claim to be bored in class attribute their boredom to some presumed failing on the part of the professor, implicitly denying any responsibility on their own part. Sometimes they are correct. A professor who engages in a straight lecture, reading from notes that the students already have because years of accumulated note-taking have generated a student version of the professor’s notes, creates the temptation to do crossword puzzles, read Sports Illustrated, pass notes, or use a laptop for activities unrelated to class. When a professor lets one or a few students chew up valuable class time with commentary that doesn’t move things forward efficiently, the professor needs to understand that this approach indeed does invite engagement in other activities. On the other hand, if a student determines that he or she isn’t getting anything from what the professor is saying, ought not the student take on the task of redirecting the discussion, perhaps even livening up the class? Students who prepare as they ought to prepare should, as participants in a graduate program leading to a doctoral degree, step up and contribute to the class. Why not generate one’s own hypothetical or problem and present it? Why not challenge the implications of something that the professor says? Would this not, in turn, encourage other students to let their minds wander? No, not if the question or challenge is presented as essential to the course. Beginning a question with, “So what you are telling us, professor, is ….” gets the attention of other students. If the capable students, those attuned to the material and prepared for class, make these sorts of contributions, other students pay attention. Rewarding useful class contributions, while discouraging useless interjections, provides additional incentives to capable, prepared students to keep things moving along at a pace that denies time for distractions.

Students, of course, are very much aware of their own, and their classmates’, use of laptops for doing things other than dealing with class-related matters. Students at one law school put together a creative law school show promo leaving no questions as to the theme of their production. One wonders if they did the production work during tax class. I doubt it. What the promo doesn’t tell us is what happens when a student asks, “Would you please repeat the question?” If the answer is “No, and you have earned negative points for your final course grade,” the likelihood of students letting themselves get trapped into needing to ask that question because they’re engaged in other activities ought to disappear. On the other hand, being “nice” and repeating the question enables the distracting activity.

Yes, there are some students who are so gifted they can multitask, playing games while listening to class discussion. Yes, there are students who will sit in the back row where they can surf the Internet without distracting students sitting behind them because there are no students sitting behind them. If they can behave in this manner and still earn high grades, as some of those commenting on the AbovetheLaw posting claim that they do, so be it. But if exams and semester exercises are designed to reward class attendance, attention, and participation, and create insurmountable hurdles for those who did not learn because they were wasting time, student behavior would change, and change quickly. Law faculty have managed to get this far without banning pens, pencils, engagement rings, and bingo cards, and it ought not be that difficult to move ahead without banning laptops. But if a law professor chooses to do so, the law professor should expect that there will be far more negative feedback than positive, and that in the long run, it isn’t going to work. Sprinkled among the comments to the AbovetheLaw posting is information telling us that some of the schools, and some of the law faculty, who banned laptops have relented. I wonder why.